Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

The key amendment is amendment No. 38 which involves the deletion of section 79(4)(l).Amendments Nos. 36 and 37 are simply a consequential tidying up of the text. For reasons that I need not dwell upon, the Bill which emerged from Committee Stage contained two provisions relating to the publication in the annual report of the name of a judge to whom a reprimand is issued following the conclusion of the complaints process. The amendment I had proposed is contained in what is now subsection (7) and this is the provision which I am the proposing should remain in the Bill.

Under that provision, the default position is that both the name of the judge and the reprimand issued shall be published. However, there is a saver where it is considered that to safeguard the administration of justice, such publication should not occur. Subsection (4)(i) will, however, ensure that there is information about the number of cases where a reprimand was issued, but the information about it is not made public.

I have been informed that there are good legal reasons which underpin the provision which the Minister for Justice and Equality originally proposed and these are grounded in the unique independent function of judges in the administration of justice in public under Article 34 of the Constitution. For example, it is important that regard is had to the ongoing functions of a sitting judge and, in certain circumstances, there might be a risk that litigants could use the fact of the published reprimand to seek judicial review of a judge’s decisions. There may also be instances of reprimands where the judicial misconduct was connected with the health of a judge and where publication might be inappropriate.

I repeat however that, as the amendment is structured, the default position is that there is a requirement to include both the name of the judge and the reprimand issued in the annual report. Non-publication will always be an exceptional step.